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Form 7A (version 5) UCPR 9.4
DEFENCE OF THE SECOND CROSS-DEFENDANT
TO FIRST CROSS-CLAIM SECOND FURTHER AMENDED STATEMENT OF CROSS-CLAIM
(Filed pursuant to orders made by Ball J on 17 February 2017, as varied by orders made by Ball J on 18 April 2017)
COURT DETAILS
Court Supreme Court of New South Wales
Division Equity
Registry Sydney
Case number 2015/306222
TITLE OF PROCEEDINGS
Plaintiff Innes Creighton
Defendant Australian Executor Trustees Limited
ACN 007 869 794
TITLE OF CROSS-CLAIM
First Cross-Claimant Australian Executor Trustees Limited
Second Cross-Claimant 100F Holdings Limited
First Cross-Defendant Swiss Re International SE
Second Cross-Defendant Willis Australia Limited
FILING DETAILS
Filed for
Filed in relation to
Legal representative
Legal representative reference
Contact name and telephone
Contact email
Willis Australia Limited, Second Cross-Defendant
First Cross-Claimant and Second Cross-Claimant, First Cross-Claim Statement
Chern Tan, Minter Ellison
SCXT:SKZR 1136331
Daniel Bunoza, (02) 9921 8715
daniel.bunozaminterellison.com
HEARING DETAILS
If the proceedings do not already have a listing date, they are to be listed at
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PLEADINGS AND PARTICULARS
The Second Cross-Defendant (Willis) pleads as follows to the allegations made by the first
cross-claimant (AET) and the second cross-claimant (100F) in the First Cross-Claim Second
Further Amended Statement of Cross-Claim (First Cross-Claim Statement):
1A. Paragraph 4 of the First Cross-Claim Statement is admitted.
1. In answer to paragraph 60 of the First Cross-Claim Statement Willis says that:
(a) it admits that it was retained by 100F as its financial lines insurance broker;
(b) it admits that it received from 100F a request for tender dated 17 May 2010;
(c) it admits that it provided 100F with a tender response dated 9 July 2010;
(d) it admits that Mr Riordan of 100F sent the email dated 25 August 2010 from to
Mr Grant of Willis referred to in paragraph 60(c) of the First Cross-Claim
Statement;
(e) by the express terms of that email, 100F informed Willis that it had determined
that it did not wish to pay for or receive the services that Willis had set out in its
tender response, and that it had determined instead to limit the scope of Willis'
retainer in the manner set out in that email;
(f) in addition to the limitations on the scope of its retainer referred to in (e) above,
on or about 12 July 2013 the terms of Willis' retainer as 100F's broker were
varied such that:
(i) Willis' aggregate liability for any:
(A) breach of contract;
(B) negligence;
(C) breach of statutory duty; or
(D) other claim arising out of or in connection with Willis' retainer or
services provided under it,
was limited to AUDIO million; and further,
(ii) Willis had no liability in any circumstance in respect of loss of revenue, loss
of opportunity, loss of reputation, loss of profits, loss of anticipated savings,
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increased costs of doing business, or any indirect or consequential loss;
and
(g) otherwise denies the allegation as particularised.
Particulars
A document headed "Terms of Business Agreement", containing the term
referred to in (f), was sent by email dated 12 July 2013 from Andrew Dawson of
Willis to Michael Stanelos of 100F, and yet again by email dated 11 November
2014 in an email from Nick Slessor of Willis to Michael Stanelos of 100F, subject
"Willis Financial Services Guide & TOBA 2014". The cross-claimant accepted
the terms by its conduct in continuing to retain the services of Willis and by its
direction to bind cover and payment relating to its insurance placement.
2. Paragraph 61 of the First Cross-Claim Statement is denied.
2A. In answer to paragraph 61A, Willis says that:
(a) it admits that Willis sent the letter dated 7 November 2012 to 100F, and that
100F sent the letter dated 7 November 2012;
(b) through that correspondence Willis and 100F agreed that Willis would continue
to be retained as its financial lines broker for a term to expire on 31 October
2015; and
(c) otherwise repeats paragraph 1 above and denies paragraph 61A.
3. In answer to paragraph 62 of the First Cross-Claim Statement Willis admits that it was
an implied term of the retainer referred to in paragraph 60 of the First Cross-Claim
Statement (to the extent it is admitted in this Defence) that it would exercise
reasonable care in performing its obligations under that retainer, and otherwise denies
paragraph 62.
4. In answer to paragraph 63 of the First Cross-Claim Statement Willis admits that it
owed 100F a duty of care at common law co-extensive with that pleaded in paragraph
62 above, and otherwise denies paragraph 63.
5. Paragraph 64 of the First Cross-Claim Statement is admitted.
6. Paragraph 65 of the First Cross-Claim Statement is admitted.
7. Paragraph 66 of the First Cross-Claim Statement is admitted.
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8. Willis denies paragraph 67 of the First Cross-Claim Statement and says further:
(a) even if Willis failed to give notice to Liberty under the 2011/2012 Liberty policy as
soon as practicable (and before the expiry of the 2011/2012 Liberty policy) that
the notice pleaded in paragraph 27 of the First Cross-Claim Statement had been
given to AXIS under the 2011/2012 AXIS policy (which is denied), that does not
affect the validity of the claim on the 2011/2012 Liberty policy by reason of the
matters pleaded in paragraph 40B or, in the further alternative, 40C of the First
Cross-Claim Statement; and
(b) even if Willis failed to give notice to Chubb under the 2011/2012 Chubb policy as
soon as practicable (and before the expiry of the 2011/2012 Chubb policy) that
the notice pleaded in paragraph 27 of the First Cross-Claim Statement had been
given to AXIS under the 2011/2012 AXIS policy (which is denied), that does not
affect the validity of the claim on the 2011/2012 Chubb policy by reason of the
matters pleaded in paragraph 400 or, in the further alternative, 40P of the First
Cross-Claim Statement.
9. Paragraph 68 of the First Cross-Claim Statement is denied.
9A. Willis denies the allegation of breach in paragraph 68A of the First-Cross Claim
Statement and says further that:
(a) a new form of financial institutions modular wording was prepared by AXIS in
about November 2014;
(b) that form of modular wording was prepared by AXIS having regard to its own
commercial interests, and was prepared by it without reference to the
circumstances of 100F or any other actual or potential insured;
(c) that form of modular wording did not adopt and follow the language of the
policies which had been negotiated and agreed as between AXIS and 100F
across the preceding policy periods;
(d) a representative of AXIS provided Willis with a copy of that new modular wording
on or about 11 November 2014;
(e) the new modular wording included an Exclusion 3.9 headed "Prior
Circumstances";
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(f) the quotation for the new modular wording included an endorsement which
replaced Exclusion 3.9 headed "Prior Circumstances" with an exclusion that
AXIS would not pay any amounts under the professional indemnity clause for or
arising out of or in connection with:
any written demand, legal proceedings or Inquiry made, threatened,
intimated against or involving the Insured before 14 November 2010;
(ii) any facts that, before 14 November 2010, the Insured was aware, or a
reasonable person in the Insured's profession would have been aware,
might give rise to a claim under the Policy;
(iii) any facts that might give rise to a claim under the Policy which have been
reported, or which can be or could have been reported, to an insurer under
any insurance policy entered into before 14 November 2010; and
(iv) any facts that might give rise to a claim under the Policy which were
disclosed to AXIS in the proposal;
(g) Willis repeats and relies upon paragraphs 27, 27A, 27C, 28 and 29 of the First
Cross-Claim Statement as to what was reported and notified by 100F to the
insurers under or in respect of policies of insurance entered into prior to the date
of receipt by Willis of the modular wording;
(h) further, on or about 2 September 2014 (that is, prior to receipt of the new
modular wording), and for the purposes of seeking a renewal of cover from AXIS
for the forthcoming period of insurance, 100F submitted a Proposal to AXIS in
which it confirmed it had notified the insurers of facts or circumstances that had
the potential to give rise to a claim;
(i) the prior notifications which had been given, and to which reference was being
made by 100F in that Proposal, included those referred to in (g) above; and
(j) in the premises, a policy of insurance on the terms of the modular wording
entered into with AXIS in or after November 2014 would not have responded to
the claims made in these proceedings, as they would have fallen within the
scope of Exclusion 3.9.
10. Paragraph 69 of the First Cross-Claim Statement is denied.
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10A. Paragraph 69A of the First Cross-Claim Statement is denied.
11. Willis denies paragraph 70 of the First Cross-Claim Statement and says further that
even if Willis is liable for any loss and damage suffered by AET (which is also denied),
and on the proper construction of the term pleaded in subparagraph 1(f) herein, Willis'
liability is limited in the manner described in that term.
Professional services defence
11A. Further, in response to paragraphs 67 to 70 of the First Cross-Claim Statement:
(a) in:
(i) negotiating and procuring on behalf of 100F and its subsidiaries the
professional indemnity policies of insurance referred to in paragraph 64 of
the First Cross-Claim Statement; and
(i) the provision of insurance brokering, insurance advisory and claims
management services to 100F and its subsidiaries at all material times on
and from 25 August 2010,
Willis was acting as a professional;
(b) the conduct of Willis pleaded in paragraph 11A(a) herein was the provision of a
professional service; and
(c) in engaging in the conduct pleaded in paragraph 11A(a) herein, Willis acted in a
manner that, as at the time in which the conduct was engaged, was widely
accepted in Australia by peer professional opinion of Willis as competent
professional practice.
11B. In the premises, Willis should not be found to have incurred a liability in negligence
pursuant to s 50(1) of the Civil Liability Act 2002 (NSW) and s 59 of the Wrongs Act
1958 (Vic), respectively.
Proportionate liability
12. In the alternative to paragraphs 1 to 11B above, in the event Willis is liable as is
alleged (which is denied), Willis says that:
(a) the proceedings involve an apportionable claim under s 34(1) of the Civil Liability
Act 2002 (NSW), that claim being the claim brought by AET against Willis in the
First Cross Claim Statement;
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(b) Swiss Re International SE, or alternatively AXIS Speciality Europe SE, is a
concurrent wrongdoer in relation to that claim in the circumstances described
below; and
(c) pursuant to section 35(1) of the Civil Liability Act 2002 (NSW), the liability of
Willis in relation to that claim is therefore limited to such amount which reflects
that proportion of the damage or loss as the Court considers just.
13. For the purposes of this proportionate liability defence only, and without making any
admission as to the correctness of any one or more of those matters beyond the
admissions made earlier in this document, Willis repeats paragraphs 1 to 40Z of the
First Cross-Claim Statement.
14. Further, AET's cross-claim against Willis proceeds on the assumed basis that clause
3.16 of the 2011/2012 AXIS policy (Insolvent Issuer Exclusion) and clause 3.11 of
the 2014/2015 AXIS policy operate as AXIS now contends, that these matters were
material to 100F's decision about whether to enter into the insurance contracts it
entered into, and that had 100F known the true position in terms of the operation of
these clauses, it could and would have been able to secure alternative insurance cover
on terms which would have provided cover in respect of the plaintiff's claims. Willis
denies each of these contentions but, necessarily for the purposes of this
proportionate liability defence only, and without prejudice to its primary position,
assumes these contentions to be correct.
15. In between the time AXIS issued the 2011/2012 AXIS policy and the time AXIS issued
the 2014/2015 AXIS policy pleaded in paragraphs 5 and 8 of the First Cross-Claim
Statement:
(a) AXIS issued a financial institutions professional indemnity policy of insurance in
favour of 100F and various related parties, which policy operated in respect of a
period of insurance from 4pm on 31 October 2012 to 4pm on 31 October 2013
(2012/2013 AXIS policy);
(b) AXIS issued a financial institutions professional indemnity policy of insurance in
favour of 100F and various related parties, which policy operated in respect of a
period of insurance from 31 October 2013 to 31 October 2014, and subsequently
extended to 30 November 2014 (2013/2014 AXIS policy); and
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(c) various excess layer insurers wrote policies of insurance in favour of 100F and
various related parties, which policies sat in a tower above the 2012/2013 AXIS
policy and 2013/2014 AXIS policy.
Particulars
The excess layer insurers above AXIS during the 2013/2014 AXIS policy period
were Liberty (with a limit of $20 million in excess of $20 million), and Chubb (with
a limit of $10 million in excess of $40 million).
16. In the period leading up to 30 November 2014, and to the knowledge of each of 100F,
AET and AXIS:
(a) 100F had notified AXIS of circumstances relating to the financial collapse of
Provident and AET's position as trustee of the unlisted debentures issued by
Provident, as described in paragraph 9 above and in the First Cross-Claim
Statement;
(b) receivers and managers had been appointed to Provident;
(c) there existed a possibility that Provident debenture holders may bring claims
against AET for the loss of sums invested;
(d) two firms of solicitors, Slater & Gordon and Meridian, had written to Provident
debenture holders referring to potential proceedings by or on behalf of debenture
holders against AET for the loss of sums invested;
(e) two Provident debenture holders, John and Rosemary Smith, had been granted
authority to act as eligible applicants for the purposes of Division 1 of Part 5.9 of
the Corporations Act 2001 (Cth) by the Australian Securities and Investment
Commission with respect to Provident, with the intention of applying to the Court
for the issue of examination summons for the purpose of obtaining evidence to
support claims against AET;
(f) the Smiths had commenced proceedings in the Supreme Court of New South
Wales in the matter of Provident in receivership (being proceedings numbered
2014/247085), pursuant to which they sought and obtained orders for the
examination of Mr Stuart Howard of AET (examination);
(g) a summons for the examination of Mr Howard was issued by the Supreme Court
of New South Wales on 9 September 2014;
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(h) the nature and extent of claims by Provident debenture holders against AET
were matters which would be explored in the examination;
(i) 100F had notified AXIS of each of the above matters;
(j) AET had sought indemnity from AXIS in relation to its costs of the examination
under the 2011/2012 AXIS policy (as described further below);
(k) at the same time as the matters pleaded in subparagraphs (a) to (j) above were
occurring, 100F was in the process of considering a renewal of the 2013/2014
AXIS policy, other related policies held with AXIS, and associated excess layer
policies, for a further period of 12 months commencing on 30 November 2014;
(I) to that end, discussions were ensuing and communications were made between
Willis (on behalf of 100F) and AXIS in relation to the provision of financial
institutions professional indemnity cover from AXIS to 100F and various related
parties for a policy period of 12 months to commence on 30 November 2014,
together with the provision of other policies of insurance (directors and officers
liability and crime cover) for the same period (2014/2015 policy);
(m) if the discussions and communications led to 100F entering into a 2014/2015
policy with AXIS, the latter would be paid total premiums of the order of $3
million; and
(n) on the assumptions set out in paragraph 14 above:
(i) the extent to which the language of the existing policy regime and any
renewal thereof provided coverage to AET in respect of AET's costs of the
examination and future claims by Provident debenture holders; and thus
(ii) the extent to which the Insolvent Issuer Exclusion or any variation of it
under a renewal operated, such that AET was not indemnified in respect of
such costs and claims,
were material to 100F's decision about whether to enter into a 2014/2015 policy
with AXIS, and if so, on what terms.
17. In or about late September and early October 2014, and prior to any decision having
been made by 100F about entering into and the terms of a 2014/2015 policy, 100F
(through Willis):
(a) notified AXIS of the fact of the examination; and
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(b) sought confirmation from AXIS that AET was covered under the 2011/2012 AXIS
policy in respect of the costs incurred or to be incurred by it in respect of the
examination.
Particulars
Emails dated 30 September 2014, 1 October 2014 and 2 October 2014 passing
between Robyn Fraser of AXIS and Andrew Dawson of Willis.
18. In fact, if the Insolvent Issuer Exclusion operates as AXIS presently contends in
relation to the plaintiff's claims against AET, the Insolvent Issuer Exclusion would also
have operated so as to take AET's claim for cover in respect of its costs of the
examination outside the scope of cover under the financial institutions professional
indemnity insurance that 100F held with AXIS.
19. Notwithstanding the matter described in paragraph 18, on or about 8 October 2014,
AXIS confirmed to 100F (through Willis) that AET was covered under the financial
institutions professional indemnity insurance that 100F held with AXIS in relation to its
costs of the examination.
Particulars
Email dated 8 October 2014 from Robyn Fraser of AXIS to Kelly Butler of Willis.
Having initially confirmed cover under the 2011/2012 AXIS policy, AXIS
subsequently confirmed, by letter dated 16 March 2015, that the relevant policy
year in respect of which that confirmation had been given was the 2013/2014
year.
20. On or about 11 November 2014, AXIS provided Willis, on behalf of 100F, with a
quotation for a 2014/2015 policy based on AXIS' new modular wording, which wording
did not contain, in express terms, the Insolvent Issuer Exclusion.
Particulars
The quotation was written, and sent under cover of an email dated 11 November
2014 from AXIS to Willis.
21. On or about 14 November 2014 AXIS provided Willis, on behalf of 100F, with a
quotation for a 2014/2015 policy based on policy wording drawn from the 2013/2014
AXIS policy. The 2013/2014 AXIS policy contained various changes in wording for
100F's benefit as compared to the 2011/2012 AXIS policy and 2012/2013 AXIS policy,
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including amongst other things the removal of the words "or indirectly" in the chapeau
to Insolvent Issuer Exclusion (clause 3.11 in the 2013/2014 AXIS policy).
Particulars
The quotation was written, and sent under cover of an email dated 14 November
2014 from AXIS to Willis.
22. The stated premium in each quote was the same.
23. On or about 30 November 2014 100F decided to renew its financial institutions
professional indemnity insurance with AXIS for a further period of 12 months, and to
do so on the basis that the policy wording would be based upon the 2013/2014 AXIS
policy.
24. At no time in the period up to and including 30 November 2014 did AXIS place or
purport to place any reliance upon the Insolvent Issuer Exclusion by way of response
to AET's claim for cover in respect of its costs of the examination, or in answer to the
notifications to AXIS referred to in paragraph 16.
25. At no time in the period up to and including 30 November 2014 did AXIS withdraw the
confirmation described in paragraph 18, or decline to indemnify AET in respect of its
costs of the examination by reason of the Insolvent Issuer Exclusion or otherwise.
26. Notwithstanding the following matters and each of them:
(a) the fact that AXIS had received notifications of Provident's external
administration, Provident's issue of unlisted debentures, and the prospect of
claims by debenture holders against AET as described in paragraph 16 above;
(b) the fact that the examination formed part of an investigation into the nature and
extent of such claims by Provident debenture holders against AET;
(c) the fact that, if the Insolvent Issuer Exclusion operated such that AET had no
cover in respect of such claims by Provident debenture holders, it would equally
have operated so as to take AET's claim for cover in respect of its costs of the
examination outside the scope of cover;
(d) AXIS' positive confirmation of cover in respect of AET's costs of the examination
described in paragraph 19 above;
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(e) the materiality, in the context of the potential policy renewal, of whether AET had
cover in respect of the costs of the examination and claims by Provident
debenture holders under the terms of its existing policies with AXIS, or under any
renewed policy which adopted the same or similar policy wording;
(f) the potential, known to each of AXIS and 100F, for Provident debenture holders
to make such claims in the renewed policy period;
(g) the fact that AXIS offered to renew cover with 100F as described in paragraph
21 above on terms which contained not just the same Insolvent Issuer Exclusion
that had not been applied by AXIS in respect of AET's accepted claim for cover
for the examination, but a more narrowly expressed version of that exclusion;
(h) the fact that AXIS had, alternatively, quoted on a renewal of cover with 100F as
described in paragraph 20 above, on the basis of new modular wording which
did not contain the Insolvent Issuer Exclusion in its terms, but for precisely the
same premium,
at no time in the period up to and including 30 November 2014 did AXIS make any one
or more of the following assertions to 100F or AET (or Willis on their behalf):
that the Insolvent Issuer Exclusion operated such that AET had no cover, and
would have no cover under any renewed policy, in respect of either the costs of
the examination or claims made by Provident debenture holders;
(j) that the examination or claims made by Provident debenture holders had or
would directly or indirectly arise from the insolvency of external administration of
Provident;
(k) that Provident's insolvency or external administration and its consequences
impacted on the extent to which AET had cover, or would have cover under any
renewed policy, in respect of either the costs of the examination or claims made
by Provident debenture holders;
(I) that, if 100F renewed its insurance with AXIS for the 2014/2015 policy period by
adopting the existing 2013/2014 AXIS policy wording so as to maintain the
Insolvent Issuer Exclusion, but in a form which was actually narrower than the
form which appeared in the existing 2011/2012 AXIS policy under which AXIS
had positively confirmed cover in respect of the examination, AET would not be
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covered in respect of claims made by Provident debenture holders in that
renewed period; and
(m) that although AXIS had received the notifications described above and the
premium was exactly the same under each of the two renewal quotes it had
provided, and it had accepted AET was covered for the examination under the
terms of its existing 2011/2012 AXIS policy which contained the Insolvent Issuer
Exclusion, AET would only be covered for claims made against it by Provident
debenture holders in the renewed period if it accepted the quotation based on
the modular wording, and would not be covered in respect of such claims if it
accepted the quote based on policy wording which contained a narrower version
of the Insolvent Issuer Exclusion that had appeared in the 2011/2012 AXIS policy
which AXIS confirmed provided cover for the examination.
27. By its conduct as described in paragraphs 19, 20, 21 and 24 to 26 above, and in the
circumstances pleaded in paragraph 16 to 26 above, in the period from 8 October to
30 November 2014, AXIS impliedly represented and conveyed the impression to 100F
and AET that:
(a) Provident's insolvency or external administration and its consequences were not
relevant to the extent to which AET had cover, or would have cover under any
renewal on the terms quoted and referred to in paragraph 21 above, in respect of
claims made by Provident debenture holders which had been the subject of the
notifications of circumstances;
(b) the Insolvent Issuer Exclusion did not operate so as to take such claims outside
the scope of cover provided by the existing policy regime, or by a renewed policy
on the terms quoted; and
(c) AET was covered by the existing policy regime, or by a renewed policy on the
terms quoted, in respect of claims made by Provident debenture holders which
had been the subject of the notifications of circumstances, or alternatively, at
least that the coverage did not turn upon the fact or consequences of Provident's
insolvency or external administration;
(d) (a) to (c) above reflected AXIS' position in relation to the operation of the policies
and any renewed policy on the terms quoted;
(e) AXIS would conduct its relationship with 100F on that basis.
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28. In fact, on the assumed basis described in paragraph 14 above (that is, A)(IS' present
interpretation of the Insolvent Issuer Exclusion), and having regard to the nature of the
representations and impressions conveyed, AXIS' conduct and the representations
and impressions conveyed by it was misleading or deceptive, or likely to be so.
29. In the premises, AXIS engaged in conduct in contravention of section 12DA of the
Australian Securities and Investments Commission Act 2001 (Cth) or section 1041H of
the Corporations Act 2001 (0th), or alternatively engaged in conduct in trade and
commerce in contravention of schedule 2, section 18 of the Competition and
Consumer Act 2010 (0th) (Australian Consumer Law).
30. By reason of AXIS' misleading or deceptive conduct, and on the assumed basis
described in paragraph 14 above:
(a) AXIS induced 100F and AET to mistakenly believe, or alternatively to affirm and
maintain a mistaken belief, that:
(i) Provident's insolvency or external administration and its consequences
were not relevant to the extent to which AET had cover, or would have
cover under any renewal on the terms quoted, in respect of claims made
by Provident debenture holders which had been the subject of the
notifications of circumstances;
(ii) the Insolvent Issuer Exclusion did not operate so as to take such claims
outside the scope of cover provided by the existing policy regime, or by a
renewed policy on the terms quoted; and
(iii) AET was covered by the existing policy regime, or by a renewed policy on
the terms quoted, in respect of claims made by Provident debenture
holders which had been the subject of the notifications of circumstances, or
alternatively, at least that the coverage did not turn upon the fact or
consequences of Provident's insolvency or external administration;
(iv) (i) to (iii) above reflected AXIS' position in relation to the operation of the
policies and any renewed policy on the terms quoted;
(v) AXIS would conduct its relationship with 100F on that basis; and
(b) 100F proceeded to renew its financial institutions professional indemnity
insurance policy in the manner and on the terms pleaded in paragraph 23 above.
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31. On the assumed basis described in paragraph 14, by reason of AXIS' contraventions
described in paragraph 29 above AET has suffered loss and damage.
Particulars
AET contends in its claim against Willis that, had AET appreciated the effect of
the Insolvent Issuer Exclusion, it would have been able to secure a more
favourable policy of insurance for (inter alia) the 2014/2015 policy period, and as
a result would have had insurance cover in respect of the claims made against it,
whereas in fact it is not covered by the claims. Willis denies those claims.
However for the purposes of this proportionate liability defence it is assumed (as
it must be in that context) that those contentions are correct. On that assumption,
it follows from the matters described herein, that had AXIS acted differently and
conducted itself so as to disclose or otherwise reveal the true position in October
or November 2014, AET would have been in the position it contends it ought to
have been in with respect to insurance cover.
32. Willis repeats paragraphs 4E and 4F of the First Cross-Claim Statement. If and to the
extent the matters there described have the effect that AXIS' liability to AET as
described above was transferred to Swiss Re, it identifies Swiss Re as the concurrent
wrongdoer. Alternatively, Willis identifies AXIS as the concurrent wrongdoer.
33. Willis does not admit any other allegation or assumption upon which any one or more
of the claims against it is based.
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SIGNATURE OF LEGAL REPRESENTATIVE
I certify under clause 4 of Schedule 2 of the Legal Profession Uniform Law Application Act 2014
that there are reasonable grounds for believing on the basis of provable facts and a reasonably
arguable view of the law that the defence to the claim for damages in these proceedings has
reasonable prospects of success.
Signature
Capacity Solicitor for the Second Cross-Defendant
Date of signature V376 A 7
ME_139048307_1
athan Downes
Level 16, 123 Pitt Street, Sydney, NSW 2000
Solicitor
may be original or certified copy)1
17
AFFIDAVIT VERIFYING
Name Greg Vlahos
Address Level 16, 123 Pitt Street, Sydney, NSW 2000
Occupation Accountant
Date 13 June 2017
I say on oath:
1. I am a director of Willis Australia Limited and am authorised to verify this defence on
its behalf.
2. I believe that the allegations of fact contained in the defence are true.
3. I believe that the allegations of fact that are denied in the defence are untrue.
4. After reasonable inquiry, I do not know whether or not the allegations of fact that are
not admitted in the defence are true.
SWORN at Sydney
Signature of deponent
Name of witness
Address of witness
Capacity of witness
And as a witness, I certify the following matters concerning the making of this affidavit by the person who made this affidavit (deponent):
1. I saw the face of the deponent.
2. I have known the deponent for at least 12 months OR-14rerve-confirrned the , • ent:
Signature of witness:
Note: The deponent and witness must page of the affidavit. See UCPR 35.7B.
I 'Identification documents' include current driver licence, proof of age card, Medicare card, credit card, Centrelink pension card, Veterans Affairs entitlement card, student identity card, citizenship certificate, birth certificate, passport or see Oaths Regulation 2011 or JP Ruling 003 - Confirming identity for NSW statutory declarations and affidavits, footnote 3.
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FURTHER DETAILS ABOUT FILING PARTY
Filing party
Second Cross-Defendant
Name Willis Australia Limited
Address Cl- Minter Ellison, Governor Macquarie Tower, Level 40, 1 Farrer Place, Sydney NSW 2000
Frequent user identifier 246
Legal representative for filing party
Name Chern Tan
Practising certificate number 31219
Firm Minter Ellison
Address Governor Macquarie Tower 1 Farrer Place Sydney NSW 2000
DX address 117 Sydney
Telephone (02) 9921 8715
Fax (02) 9921 8314
Email [email protected]
Electronic service address Not applicable
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